Justices Complain About Michigan Habeas Relief

(CN) – Three conservative justices dissented Monday as the U.S. Supreme Court refused to intervene in the confrontation-clause relief for a convicted murderer. Junior Fred Blackston was convicted in Michigan of first-degree murder, then retried and convicted again. Though five people, some of whom participated in the crime, testified against Blackston at the first trial, two of those witnesses recanted those statements ahead of the retrial. When called to the stand at the second trial, this pair refused to answer any questions. Though prosecutors read their earlier testimony to the jury, the court refused to admit their written recantations into evidence. The state judge pronounced the witnesses “unavailable” pursuant to a hearsay exception, and Blackston was sentenced to life imprisonment. Though the state Supreme Court found no error in excluding the witnesses’ recantations, a federal judge conditionally granted Blackston a writ of habeas corpus, finding that the exclusion of the recantations violated his Sixth and 14th Amendment rights. The Sixth Circuit affirmed 2-1 this year, and the U.S. Supreme Court shot Michigan’s petition for certiorari down without comment Monday. Three conservative justices who took issue with this resolution did have comment, however. “We have never held – nor would the verb ‘to confront’ support the holding – that confrontation includes the right to admit out-of-court statements into evidence,” Justice Antonin Scalia wrote, joined by Justices Clarence Thomas and Samuel Alito. “Nevertheless, the Sixth Circuit held not only that the confrontation clause guarantees the right to admit such evidence but that our cases have ‘clearly established’ as much. We should grant certiorari and summarily reverse.” Scalia noted that “each of the cases the Sixth Circuit relied on involved the defendant’s attempting during cross-examination to impeach testifying witnesses, not unavailable declarants.” (Emphasis in original.) Meanwhile the 2013 case Nevada v. Jackson emphasizes that the Supreme Court “has never held that the confrontation clause entitles a criminal defendant to introduce extrinsic evidence for impeachment purposes.” (Emphasis in original.) “The Sixth Circuit thought the recantations here intrinsic, not extrinsic, and so beyond Jackson’s ambit,” Scalia wrote. “That is quite irrelevant. The pertinent question under AEDPA [the Antiterrorism and Effective Death Penalty Act] is whether our cases have clearly established a right, not whether they have failed to clearly foreclose it. There may well be a plausible argument why the recantations ought to have been admitted under state law. But nothing in our precedents clearly establishes their admissibility as a matter of federal constitutional law. AEDPA ‘provides a remedy for instances in which a state court unreasonably applies this court’s precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error.’ By framing the confrontation right at a high level of generality (making it the right ‘to impeach the credibility of an adverse witness’), the Sixth Circuit in effect ‘transform[ed] … [an] imaginative extension of existing case law into “clearly established”‘ law. That will not do. The Sixth Circuit seems to have acquired a taste for disregarding AEDPA. We should grant certiorari to discourage this appetite.” Blackston’s case was one of dozens the Supreme Court refused to take up Monday. It did not grant any cases certiorari in its latest order list.